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Spouses and children victimised by domestic violence face exceptional barriers to access family justice in South Africa. A multifaceted socio-legal problem, domestic violence implicates criminal, civil, and family law simultaneously. Thus, in taking steps to ensure the victim’s and family’s safety and the safety of her children, a battered woman may become implicated in multiple, concurrent legal proceedings taking place in different jurisdictional spheres. Reporting an incident of violence to the police can trigger a prosecution in criminal court, and family court child protection proceedings. These proceedings are driven by fundamentally different concerns and will likely be handled by different legal practitioners and will be heard by different courts. The confusion and overlap that result from this fragmentation can create gaps in safety planning, lead to conflicting court orders, and can enable the offender to exercise control by manipulating the court process. Such fragmentation can lead to continued violence and, in the worst of circumstances, to tragedy.

The introduction of the Criminal and Related Matters Amendment Act 12 of 2021, which came into operation on 5 August 2022, seems to be a step in the right direction. The Preamble of the Act reads to protect the rights of complainants in domestic-related offences. The steps taken by the legislature are not novel attempts and have been made in various other countries in adopting such a strategy to curb domestic violence. What is, however, of particular concern is the enactment of s 60(12)(b) of the Criminal and Related Matters Amendment Act. It reads: ‘If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), in respect of an offence that was allegedly committed by the accused against any person in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998, with the accused, and a protection order as contemplated in that Act has not been issued against the accused, the court must, after holding an enquiry, issue a protection order referred to in section 6 of that Act against the accused, where after the provisions of that Act shall apply’.

The purpose of the legislation is commended. What is questioned is the wording of it and the need to address it at bail proceedings. The purposive approach to statutory interpretation requires that a court assess legislation in the light of its purpose since legislative intent, the object of the interpretive exercise, is directly linked to legislative purpose. Interpretations that are consistent with or promote legislative purpose should be preferred and interpretations that defeat or undermine legislative purpose should be avoided. It is relevant to note the quality of the information that is being controlled at bail proceedings. Bail hearings are often conducted informally and summarily. The state will often rely on inadmissible or untested evidence. Hearsay, ambiguous after-the-fact conduct, evidence of bad character and criminal associations, untested similar fact evidence, prior convictions, other outstanding charges, and mere allegations are just some of the information that may be relied on by the state. It, therefore, begs the question of what is the nature, content, and quality of the allegation that is required to hold an inquiry. The wording of the Act suggests where bail is refused for an accused, an inquiry cannot be conducted. An inquiry must be held only where the interests of justice permit the release of the accused. This section suggests where bail is refused – even if during bail proceedings there is evidence or information that shows the accused committed a crime that perhaps entails domestic violence – an inquiry cannot be conducted. The wording of s 60(12)(b) defeats the purpose of the Act by providing protection to all persons against whom an offence was allegedly committed by an accused in a domestic relationship. It, therefore, excludes the accused person for whom bail was refused that an inquiry must not be conducted, even though there may be evidence or information of abuse in its many forms.

The enactment of this section in my opinion encroaches on several rights of an accused/respondent. These rights are enshrined in the Constitution. The word ‘must’ means that the particular requirement is peremptory. The Supreme Court of Appeal held that ‘language of a predominantly imperative nature such as “must” is to be construed as peremptory rather than directory unless there are other circumstances, which negate this construction’ (Minister of Environmental Affairs and Tourism and Others v Pepper Bay Fishing (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Smith 2004 (1) SA 308 (SCA) at para 32). The court is, therefore, obliged to hold an inquiry in terms of the Domestic Violence Act 116 of 1998. The section is silent in so far as ss 4 and 5 of the Domestic Violence Act are concerned. Courts are not mandated ‘to read words into a statutory provision. It is only when words are “reasonably capable of bearing” a particular meaning that they may be interpreted contextually’ (R v McIntosh [1995] 1 SCR 686). Interpreting the words holding an inquiry on a very wide interpretation can be construed as compliance with s 5 of the Domestic Violence Act. Section 60(12)(b) does, however, infringe the accused/respondent’s rights in so far as s 32 of the Constitution is concerned. Section 32 reads: ‘Everyone has the right of access to –

(a) any information held by the state; and

(b) any information that is held by another person and that is required for the exercise or protection of any rights.’

It begs the question of how would the accused/respondent’s rights be protected in terms of s 32 of the Constitution? It must be remembered the inquiry is conducted in terms of s 60(12) of the Act – bail proceedings. An accused/respondent is not entitled to any information relating to the offence in question in terms of s 60(14) of the Criminal Procedure Act 51 of 1977. It reads: ‘Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs’.

The construction of the section seems to suggest the court has no discretion. It must issue a protection order in terms of s 6 of the Domestic Violence Act after an inquiry has been held. There is no doubt that the courts must give effect to the intention of the legislature as expressed in the words of the statute and, however, reprehensible the result may appear, it is our duty to the words, which are clear, to give them effect. This follows from the constitutional doctrine of the supremacy of the legislature when acting within its legislative powers. The fact that the words as interpreted would give an unreasonable result, however, is certainly grounds for the courts to scrutinise a statute to make abundantly certain that those words are not susceptible to another interpretation. For it should not be readily assumed that the legislature intends an unreasonable result or to perpetrate an injustice or absurdity. The wording of the section seems to suggest the court does not have discretion as it refers to s 6 of the Domestic Violence Act. Section 60(12)(b) of the Criminal Procedure Act as amended disregards s 6(1)(b) that reads: ‘The application contains prima facie evidence that the respondent has committed or is committing an act of domestic violence’ and s 6(2)(a) that states the court must ‘consider any evidence previously received in terms of section 5(1)’ of the Domestic Violence Act. These subsections are the foundation on which an order is decided in terms of s 6(4) of the Domestic Violence Act.

At the risk of repetition, it is important to stress that the inquiry falls within the ambit of the Criminal Procedure Act as amended. The accused/respondent’s rights are to some extent infringed in terms of s 35(3)(h) and (j). The accused/respondent is hamstrung by s 6(3) of the Domestic Violence Act and s 235 of the Criminal Procedure Act. The wording of these sections in my opinion are too wide, which may lead to absurdity. It is a principle of fundamental justice that a statute is ‘void for vagueness if its prohibitions are not clearly defined’ (Grayned v City of Rockford [1972] USSC 158). A vague law does not provide sufficiently clear standards to avoid arbitrary and discriminatory applications. Factors to be considered in determining whether a law is too vague, include ‘(a) the need for flexibility and the interpretive role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist’ (Young v Young [1993] 4 SCR 3). An example would perhaps best illustrate how the section if applied narrowly might lead to absurdity.

Section 60(12)(b) of the Criminal Procedure Act refers to any offence that was allegedly committed by the accused against any person in a domestic relationship. It begs the question of what occurs if the offence does not fall within the ambit of the term ‘domestic violence’ as defined in s 1 of the Domestic Violence Act as amended? How does the court based upon scant information provided during the bail application determine there is a domestic relationship between the parties in the light of Daffy v Daffy [2012] 4 All SA 607 (SCA); 2013 (1) SACR 42 (SCA) at para 8?

The intention of the legislature for greater integration to bring about a more victim-centred approach to deal with domestic violence in the court, must be applauded. Parliament’s goal should be to achieve an integrated establishment of a dedicated courtroom for each proceeding related to a single family, which is presided over by a single judicial officer. This major innovation of the integrated domestic violence court model has been tested in the city of New York and certain provinces of Canada with limited success. An integrated approach will reduce information gaps and diminishes the potential for offenders to manipulate the court process to extend control over their former partners and children by allowing one judicial officer to gain comprehensive information on a particular family and insight into their circumstances. Depending on the jurisdiction, a single judicial officer may make most or all the orders that are necessary to address the family’s legal issues, including granting orders of protection, imposing sentences, providing for spousal and/or child maintenance, and structuring parenting arrangements. The judicial officer will be able to hear each proceeding sequentially to keep matters distinct and ensure that the correct evidentiary and procedural rules relevant to each type of proceeding are applied. Logistically we are far from reaching such a process, but we should not be detracted by the obstacles our system faces in reaching it. The noble attempt by the legislature and specifically s 60 (12)(b) of the Criminal Procedure Act as amended is not a step in the right direction.

Lastly, the law is only as good as the system that delivers on its promises. Our focus should be to improve our system and resources rather than legislation that disregards the constitutional rights of the accused and respondents.

Desmond Francke BIuris (UWC) is a magistrate in Uthukela.

This article was first published in De Rebus in 2022 (Dec) DR 15.